I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

February 29, 2012

EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.

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EVIDENCE – SELF-SERVING VIDEO OF PARENT-CHILD INTERACTION – DEFENSE AGAINST ABUSE ALLEGATIONS – FEE AWARDS AGAINST ABUSE-ALLEGING PARENT. The Court of Appeals rulings in the appeal of a Fairfax custody case would all be fairly interesting and instructive if it were not for the many Rule 5A:18 rulings in the disposition of this appeal. However, a couple of the remaining appellate rulings are worth summarizing for readers. This unpublished case, Jaouni v. Salah, 26 VLW 988 (1/24/12), turned upon denial of a protective order to the mother against her divorced husband, who had visitation rights. The mother had gone to the juvenile court for a protective order alleging that the father physically abused the 8-year-old daughter during visitation, beating her and touching her private parts, which he vehemently denied. And although there had been evaluations by a licensed clinical psychologist of both parents in a separate case, and the trial court allowed this psychologist testimony on the abuse issue, even though the witness was never qualified in this case as an expert. The psychologist testified that the daughter “overly identified with the mother and took responsibility for her happiness.” At the end of the trial in Circuit Court, the judge denied the protective order, ordered the mother to pay $14,000 of father’s attorney’s fees, and denied reconsideration. The Court states that the mother’s objection to the non-expert-qualified psychiatrist’s testimony came too late since it was near the end of the testimony. Moreover, the trial court did not abuse its discretion, it was held, in admitting it. Apparently, the mother’s objection to the psychologist testifying on the daughter’s credibility was overruled, and the appellate court does not interfere with that. The denial of the protective order was well within the trial judge’s discretion, and it certainly appeared that the mother failed to meet her burden of proving the alleged abuse. As for admitting the father’s prepared-for-litigation video tape, it was within the judge’s discretion, as it was relevant and admissible. As for its being self-serving, etc., is concerned, that was harmless since the court well knew that it had been prepared for litigation. The trial court had expressed concern over the mother’s “posturing the daughter for litigation,” and the fee award under §16.1-279.1(E) was not an abuse of discretion. However, the Court of Appeals did remand for an evaluation of the mother’s ability to pay fees, as required by §16.1-278.19.